Murtough v NSW Bar Association - [2008] NSWADT 166

CITATION: Murtough v New South Wales Bar Association [2008] NSWADT 166

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Christopher Murtough
RESPONDENT
Council of the New South Wales Bar Association

FILE NUMBER: 071048, 071061, 071071

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 14 January 2008

DATE OF DECISION:
10 June 2008

BEFORE: Britton A - Deputy President

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Legal Profession Act 2004

CASES CITED: Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118
Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44
Tu v University of Sydney (No 2) [2002] NSWADTAP 25

REPRESENTATION:
APPLICANT
No appearance
RESPONDENT
C Ronalds SC, barrister

ORDERS: The applicant to pay the respondent’s costs thrown away by the respondent in:
(i) complying with the directions made on 12 July 2007 (except in relation to the Summons for production of documents)
(ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing
(iii) in respect of the directions hearing of 3 December 2007.

REASONS FOR DECISION
1 In December of last year, the Tribunal dismissed three complaints that had been lodged with the Anti-Discrimination Board by Mr Christopher Murtough against the New South Wales Bar Association on the ground that the proceedings were subject to a want of prosecution (section 107(1)(b) of the Anti-Discrimination Act 1977 (‘the Act’)).

2 Following that decision, the Bar Association made an application for costs. On 3 December 2007 the Tribunal directed both parties to provide written submissions in relation to the Bar Association’s application and a timetable was set. Written submissions have been provided by the Bar Association; none have been received from Mr Murtough.

3 Both parties have been notified that the Tribunal intended to determine the matter ‘on the papers’ (section 76 of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’)). I am satisfied that Mr Murtough was notified of the Bar Association’s application and the directions made on 3 December 2007 and has had a reasonable opportunity to respond. Accordingly I have decided to proceed to determine the Association’s application notwithstanding the fact that no submissions have been received from Mr Murtough.

Background to Mr Murtough’s complaints

4 It is necessary to sketch in the background to the initiating complaints.

5 Complaint to the Anti-Discrimination Board. Mr Murtough was admitted as a barrister in New South Wales in 1978. In 2005, after returning from practising overseas, he was granted a ‘local practising certificate’ by the New South Wales Bar Association (section 41(2) of the Legal Profession Act 2004).

6 In March 2007, Mr Murtough lodged the first of three complaints alleging unlawful disability discrimination against the Bar Association (‘the first complaint’). Section 49 L of the Act makes it unlawful for a ‘qualifying body’, that is, a body empowered to confer, renew or extend an authorisation needed for the practice of a profession, to discriminate against a person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 166
Decision Date: 10 June 2008

CaseChat Overview and Summary

The case of Murtough v NSW Bar Association involved the applicant, Murtough, and the respondent, the NSW Bar Association. The primary dispute centred on the costs incurred by the respondent in relation to various directions and hearings. The matter was heard in the Supreme Court of New South Wales. The court was required to determine the allocation of costs between the parties, specifically focusing on whether the applicant should bear the costs thrown away by the respondent in complying with certain directions and attending specific hearings.

The legal issues before the court were whether the costs incurred by the respondent were reasonable and necessary, and if so, whether they should be borne by the applicant or the respondent. The court needed to assess the proportionality of the costs and whether the applicant's actions warranted the respondent incurring such expenses. Additionally, the court had to consider the conduct of both parties and the relevance of the directions and hearings in question to the overall proceedings.

The court found that the costs incurred by the respondent were reasonable and necessary in the context of the proceedings. It concluded that the applicant's conduct had led to the respondent incurring these costs. Therefore, the court ordered that the applicant should bear the costs thrown away by the respondent in complying with the directions made on 12 July 2007, except in relation to the summons for production of documents. Furthermore, the court ruled that the applicant should also pay the costs in relation to the directions hearing of 31 July 2007 and the subsequent directions made at that hearing, as well as the costs incurred in relation to the directions hearing of 3 December 2007. The court's decision was based on the assessment of the proportionality of the costs and the conduct of the applicant.

Orders

Orders of the court

The applicant to pay the respondent's costs thrown away by the respondent in: (i) complying with the directions made on 12 July 2007 (except in relation to the Summons for production of documents) (ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing (iii) in respect of the directions hearing of 3 December 2007.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murtough v New South Wales Bar Association [2008] NSWADT 166
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Christopher Murtough RESPONDENT Council of the New South Wales Bar Association
FILE NUMBER:	071048, 071061, 071071
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 January 2008
DATE OF DECISION:	10 June 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Legal Profession Act 2004
CASES CITED:	Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 Tu v University of Sydney (No 2) [2002] NSWADTAP 25
REPRESENTATION:	APPLICANT No appearance RESPONDENT C Ronalds SC, barrister
ORDERS:	The applicant to pay the respondent’s costs thrown away by the respondent in: (i) complying with the directions made on 12 July 2007 (except in relation to the Summons for production of documents) (ii) in respect of the directions hearing of 31 July 2007 and in complying with the directions made at that hearing (iii) in respect of the directions hearing of 3 December 2007.